英国阿伯丁大学\University of Aberdeen法律类dissertation：On the moral limitations of contract
Modern market economy is the diversification of the economy , but also the complexity of the object -oriented economy , in which the object of diversification between the main body and complexity , there are a lot of economic relations , these are mostly economic relations between each other through a variety of contracts subject to keep going. Contract as a product of the modern market economy , a strong impetus to the development of the market economy and prosperity . Market economy respecting the law of value , maintain freedom of contract . However, blindly follow the law of value , will lead to market failure ; unrestrained freedom of contract or breach of ethical issues generated social public order and good morals . On a civilized and healthy society, widespread public awareness and moral self-discipline contract two equally important. If the contract is a hard constraint , then the moral is soft constraints . This will combine China 's related cases, from a moral perspective on contractual limitations and restrictions described.
First, the meaning of the contract
Is essentially a consensual contract , that the parties in a particular issue of will. To achieve this result , the contract three preconditions must be met : First , there must be two or more of the existence of the subject ; second , meaning that the subject must be able to make ; Third , the subject must be at a mean point agreement. Contract on the qualification requirements can be summarized in two aspects , namely equality of personality , freedom of the will . Equality of personality is different from the order contract , subject to the administration characterized by an important symbol , is an inherent requirement of the contractual relationship . Libertarian requires equality between people , libertarian includes the following aspects: freedom of contract , namely the freedom of contracting with others ; selection Parties freedom , namely freedom to decide with whom contracting , such as " anti-monopoly law , "" anti-Unfair Competition Law "and other , non- competitive behavior by the restrictions , to safeguard the right to freedom of choice ; determine the content of free contracting , that content of the contract by the parties decide freely ; freedom of choice Contracting way , that contract is not entered into is required in order to practice a certain way . Meanwhile, the contract also stressed the connotation : pacta sunt servanda , breach of contract responsibility . The older generation of jurists said: "The principle of private autonomy is an important part of freedom of contract principle, which is the basic principle of modern contract law , contract law in all of modern core of the system ." Contract Law in China also established freedom of contract principles .
现代市场经济是主体多元化的经济，也是客体复杂化的经济，在这些个多元化主体及复杂的客体之间，存在招数量多的经济关系，这些个经济关系大部分是经过各种主体彼在这之间的出卖文书来维系的。出卖文书作为现代市场经济的产物，有力量地推动了市场经济的蓬勃进展。
This is the root of different contractual links between the main bond markets , with the market economy law and order attributes to meet the exchange of convenience, security , freedom, voluntariness and mutual benefit , justice and other needs , thus contributing to the rapid and large-scale market economy development . However, freedom of contract is not absolute freedom , in fact, freedom of contract and can not be absolutely free .
出卖文书实质上是一种中意，即缔约各方在某一问题上意思表达完全一样。要达到这一最后结果，出卖文书务必满意三个前提条件：第1，要有两个或两个以上的主体存在；第二，主体务必能够做出意思表达；第三，主体的意思务必能够在某一点儿上得到完全一样。
Second, the moral limitations of contract
Since the twentieth century, with the further development of the market economy , the economic status has obvious potential difference between traders , the contract law of the jungle is becoming a tool . We sometimes assume that when two people make a deal, the terms of their agreement must be fair. However, the fact is not so , the actual contracts are not self-sufficient moral tool that you and I do business the fact does not make the deal is fair. We emphasize the principle of freedom of contract in the process, often overlooked and ethics -related information. In some cases, the contract reached often produce many moral issues.
Case I: Paid surrogacy . Country banned any form of surrogate technology, this year January 30 Ministry of Health announced that for assisted reproductive technology special rectification action program , the current ( March ) has entered into a centralized remediation phase. According to reports , most of the younger surrogate mother at 30 years of age , due to economic reasons into the surrogacy industry , several hundred thousand dollars on their high cost in terms of surrogate attractive , but the frequent and not with their own fertility babies born to meet again also makes their hearts full of tangled . According to CCTV reported , Hong Fu Chen wholly entrusted package needs one million students , like a boy but also coupled with 200,000 ; If you want to have twins boys , but also coupled with 300,000 . The surrogate mother get 17-23 million. If early detection is a girl , it will be more to the point surrogate mother money , let yourself run off .
Admittedly , this is not an ordinary commercial transaction or contract . Surrogacy support people will think : no party transactions accounted for a higher position , each side has something the other wants . Each party service prices have been identified. No party to compel the other party does not have the expertise therefore at a disadvantage to the other party , and no one has a disproportionate trading power, social and law should respect their freedom of choice. However, we should note that most of the surrogate mother making this decision is not entirely free, for money or the huge pressure of life need to force them to do this choice because we did not see the low-income strata of infertility infertile couples will find high income surrogate . Secondly, many respondents surrogate mother asked, " will not miss the child " , will exhibit painful feelings. It is also doubtful that when a woman agrees for the money and give birth to a child and was born after the abandon him, she completely got the information . Does she really expect that , when she gave up the child, they will be what it feels like . If not, then she is not based on the original consent for full and complete information . Again, Surrogacy by women's bodies and fertility instrumentalization , the child also becomes a commodity , which in a civilized society , is a violation of ethics . Human beings are worthy of respect , rather than being used objects . Commercial surrogacy women and children be utilized as a tool to make money , rather than love and care about them as people who deserve to be cherished.
Case II: kidney organ trading . February 29, 2012 , the Beijing Haidian District People's Procuratorate to organize the crime of selling human organs Jeong, 16 people be prosecuted . According to investigators , the case with the organization called China is currently the largest selling human organs crimes cases : Currently there are 51 verified involved kidney organ , a thousand million stolen money . From finding , dependent Maishen personnel, contact kidneys buyers to lease the hospital , villas and pick kidney surgery , organized criminal gangs , dominated the entire crime to sell human organs in the process , scale is astounding. Chinese demand for kidneys how much ? How black market organ formation ? From the health department statistics show that each year about 1.5 million people in China need organ transplants , but only 10,000 can receive a transplant surgery, a serious imbalance between supply and demand of human organs . It is this gap between supply and demand huge demand of objective reality , urging the body organ trading live "underground market" and even kidney organ trafficking to obtain a series of social problems.
And paid surrogacy situation is the same in the " underground market" publicly traded kidney organ acts not only violated the law , too, had a moral issue. On the one hand , while these organs brokering purely to make money, but there are still families of patients with a letter pleading for them , that they " see the light so that uremic patients , saving the lives of dying ." On the other hand , according to the survey were more willing to sell their kidneys from poor strata of the population , and even many of teenagers. If the organ is the kidney support trading in order to save lives, then for those who give up their lives for the money and the poor health or lack of experience and judgment of adolescent life we should ignore it ? This behavior will be the same body as a tool to make money , is a violation of ethics .
Professor Liang said: "As a modern civil judgments based on two basic so-called equality and interchangeability has lost the case , the absolute freedom of contract caused a party to use its monopoly position to control the content of the contract and benefits , so it is bound to make the disadvantaged the other party 's interests are jeopardized , but also affect the transaction security and stability . " in real life, people very different from the situation , which means that different trading power and knowledge always possible. We are in a free market choices made in the end how much freedom ? This paper argues that there are certain virtues and the greater good is not respected in the market , and is that money can not buy.
Third, the deed restrictions
Compact is a useful tool for promoting productive activities , but may also corrode or destroy those ethics , therefore , we need to make the appropriate deed restrictions . Specific should include the following aspects: ( 1 ) to strengthen the contractual limitations on content that contract and the terms must not violate the laws, regulations and social public order and morals , shall not take advantage of and dominance through the format of the contract and the terms of the improper reduction of their responsibilities or increased relative responsibility ; ( 2 ) to strengthen restrictions on the form of contracts , involving people's vital interests or the public interest contract or agreement shall be authorized in writing , or require some special contract only become legally effective after registration , etc. ; ( 3 ) strengthen the deed of justice, freedom of contract to fix , that is, to strengthen the weak, the strong weakening of the right to freedom of contract , in order to compensate for their weakness in the economy strong difference , achieve an average justice. Government regulation and laws regulating the use of common moral regulation in a market economy contractual behavior , in order to maintain security and commodity trading arm ; ( 4 ) the state legislature to continue to improve laws and regulations, to make up for loopholes in the law so that the judiciary in the face of emerging market new situations and new problems to law.
Based on individual contracts , and individual liberty will, but the socialist market economy is both a contract economy , but also moral economy . As Kant said : "We can not sacrifice good for one kind of another good" , ie, not for a legitimate interests at the expense of other legitimate interests . Only through moral self-discipline to improve people's moral realm , norms and regulate people's behavior in order to protect the real performance of the contract , it is consistent with one of the basic requirements of a civilized and healthy society .
